Coerced childbearing is tantamount to servitude

I am not a lawyer, but I was thouroughly disappointed by the recent judgment of the European Court of Human Rights in the case of ABC v Ireland. http://cmiskp.echr.coe.int/tkp197/view.asp?item=67&portal=hbkm&action=html&highlight=&sessionid=63977017&skin=hudoc-en. The judgment may bring a solution, now and then, to a handfull of women in Ireland faced with a life-threatening condition because of their pregnancy. But most Irish women will still have to travel to another country for abortion. In my opinion, the Court just did not see (or did not want to see, for political reasons) that forced childbearing violates core fundamental personal rights of women.

Ireland together with the mini-states of Andorra, Malta and San Marino are the only states in Europe where abortion is still totally prohibited (in Ireland with the only exception of risk to life for the pregnant woman). The Irish Constitution guarantees „the right to life of the unborn, with due regard to the equal right to life of the mother”. There is no law defining more precisely what is meant by “due regard” or any procedure for such cases. There is only a judgment by the Irish Supreme Court saying that risk of suicide is also a legitimate ground for abortion.

In 2005 three women, A., B. and C., submitted a complaint to the European Court of Human Rights (Court). They claimed that the impossibility to obtain an abortion in Ireland was stigmatising and an affront to their dignity and, in the case of C., constituted even a risk to her life. The Court held that in the case of applicant C. there had been a violation of Article 8 of the European Convention on Human Rights (ECHR) – which guarantees the right to respect for private life – because the authorities had failed to provide a procedure by which she could have established whether she qualified for a lawful abortion in Ireland.

On the other hand, by 11 votes to 6, the Court dismissed the claims of applicants A. and B., since „only“ their health and well-being had been at stake and they had the possibility to interrupt their pregnancy in England. Having regard to the profound moral views of the Irish people, the Court considered that by prohibiting abortion for health and well-being reasons Ireland had not exceeded its margin of appreciation.

It strikes me that only 5 of the 17 judges were women, 3 of whom were among the 6 dissenting judges who argued that not only applicant C’s (who had a life-threatening condition), but also applicants A and B’s right to private life had been violated under article 8 of the ECHR, because they were not entitled to have an abortion in Ireland for reasons of health and well-being. The other two women on the panel of judges were the representatives of the accused State of Ireland and of Andorra (which has an even stricter ban of abortion).

Article 2 ECHR: everyone’s right to life

In its ruling, the Court has NOT recognized the existence of a „right to life of the unborn“, as was wrongly alleged by antiabortion circles (in particular the European Centre for Law and Justice ECLJ – what a misleading name!). But it did concede to Ireland a broad margin of appreciation to determine “the protection accorded under IRISH law to the right to life of the unborn”. In its reasoning the Court stuck to earlier findings that “there was no European consensus on the scientific and legal definition of the beginning of life, so that it was neither desirable nor possible to answer the question whether the unborn was a person to be protected for the purposes of Article 2 ECHR”, hence, the question of when the right to life begins came within the States’ margin of appreciation. – Notexactlya boldstatement.

The Court is mixing up two distinct notions: „beginning of life“ is not the same as „beginning of personhood“. The question is not when life begins, but when a person becomes a person. Only persons have rights. In the French version of the ECHR the word „personne“ is used in Article 2. In the case of Paton v United Kingdom of 1980 (Appl. 6959/75) the Court took a clear stand and said; „both the general usage of the term ‘everyone’ (‘toute personne’) of the Convention and the context in which this term is employed in Article 2 tend to support the view that it does not include the unborn“.

So in a possible next complaint to the Court concerning abortion rights, we should argue that in fact there IS a strong consensus in Europe that personhood begins at birth and therefore embryos do NOT have a right to life. No European States – with the exception of the four mentioned above – accord to prenatal life the same protection as to born persons, let alone an absolute right to life. (When the German Constitutional Court in its judgment of 1993 talked about a „right to life of the unborn“, it did by no means confer to the unborn an equal rightto lifeas to persons already born, otherwise it could never have admitted a law permitting abortion on request within the first weeks of pregnancy. By its reasoning, the German court has created a sort of second class “right to life” thereby dangerously weakening the notion.)

Article 8 ECHR: the right to respect for private and family life

Fortunately the Court has reiterated its earlier finding: “the notion of ’private life’ within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to personal autonomy and personal development,… a person’s physical and psychological integrity as well as decisions both to have and not to have a child”. The Court did NOT say categorically – as purported by the ECLJ – that there is “no human right to abortion stemming from the European Convention on Human Rights“. The Court only referred to Article 8 which, unfortunately, according to the Court “cannot be interpreted as conferring a right to abortion” and it added – repeating an earlier statement – that “not every regulation of the termination of pregnancy constitutes an interference with the right to respect for the private life of the mother”. [Why do the judges use the word “mother” when meaning a pregnant woman???!!!]

Unfortunately, 11 out of the 17 judges decided, that the prohibition in Ireland of abortion for reasons of health and well-being, although constituting an interference with the right to respect for private life, was justified because it was “necessary in a democratic society” for pursuing a legitimate aim, namely “the protection of (Irish) morals of which the protection in Ireland of the right to life of the unborn was one aspect”.Having regard to the right to travel abroad for an abortion and to have access to appropriate information and medical care before and afterwards, the Court found that Ireland had “struck a fair balance between the rights of women and the profound moral values of the Irish people and did not exceed its margin of appreciation.”

The Court did not take into account that many women cannot afford to travel, that the procedure is delayed and made more burdensome and that theabortionbancriminalizesandhumiliateswomen.

Double standard

In the case S.H. and Others v Austria (Appl. 57813/00)concerning IVF, the Court declared that “a complete ban on the medical technique at issue would not be proportionate unless it was deemed to be the only means of effectively preventing serious repercussions“. On the other hand, the Court finds the Irish prohibition of abortion proportionate, although prohibition has never and nowhere been an effective means to avoid abortions but, on the contrary, has always had serious repercussions for women!

The Court did not address at all in the S.H. v Austria case the argument of the Austrian government as for an „unease existing among large sections of society“ concerning modern reproductive medicine. Instead, contrary to the Irish case, the Court found that “concerns based on moral considerations or on social acceptability are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique“.

Although the Court acknowledged that there is “no European consensus“ on IVF, it did not concede a “large margine of appreciation” to Austria, whereas it did concede such a margin to Ireland, in spite of a strong European consensus existing with regard to abortion rights.

In the Austrian case, the Court held that the restrictive law on reproductive medicine violated article 8 ECHR, because “where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted, and the wish for a child IS one such particularly important facet“. Ireland on the other hand was accorded a broad margin of appreciation, in spite of abortion also touching a “particularly important facet of an individual’s existence or identity“.

It looks like in the eyes of the Strasbourg judges the desire to have a child was more existentially important than the wish NOT to become a mother. I would see it ratherthe other wayround.

Article 4 ECHR: prohibition of servitude and forced labour

It is appalling that States may violate women’s most fundamental rigths just to protect “moral values” of a (presumed) majority of their inhabitants. In my opinion the majority judges did not realize what it means for a woman to UNWILLINGLY (!!!) have to carry to term within her body, for 9 months, an embryo/fetus and then have to give birth.

Articles 4 of the ECHR and of the International Declaration on Human Rights prohibit servitude and forced labour. Astonishingly, no abortion ban has yet been challengedpursuant to these articles.

„Servitude“ – the word used in the German translation of Articles 4 is „Leibeigenschaft“, which expresses exactly what forced pregnancy means: your body belongs to someone else, the State (or a fetus) takes possession of the body of a woman, against her will. The word „labour“ applies to a woman giving birth, forced childbearing is nothing else but forced labour!

In her book „Making the Connections: Essays in Feminist Social Ethics“ theologian Beverly Harrison compares pregnancy and childbearing to servitude when they are compulsory. And Dawn Johnsen, law professor at Indiana University School of Law said: “Statutes that curtail [a woman’s] abortion choice are disturbingly suggestive of involuntary servitude”.

So, in a possible future complaint to the European Court of Human Rights concerning abortion rights, I would suggest

to invoke Article 4 of the ECHR which prohibits servitude and forced labour and

to argue that, in fact, there does exist a strong consensus in Europe that personhood begins at birth and therefore Article 2 ECHR definitely does not include prenatal life.